Bills

Anangu Pitjantjatjara Yankunytjatjara Land Rights (Miscellaneous) Amendment Bill

Second Reading

Debate resumed.

The Hon. S.E. CLOSE (Port Adelaide—Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for the Public Sector) (16:43): I thank members for their input to the discussion on this bill, some of which was extremely thoughtful and well considered. I note that there is general agreement in this place that there has been some instability involving the APY Executive Board for a considerable time. The APY Land Rights Act currently provides only limited powers to the minister to intervene in the governance and management of the APY.

These are all conditional on the minister first issuing a formal direction to the board, which the minister may do only in specified circumstances to take action to address a failure of the executive board of a prescribed kind, and the executive board then failing to comply with that direction. Only then can the minister suspend the board and appoint an administrator. The alternative is that which is before the chamber today, and that is to amend the act to add a discretionary ministerial power to suspend the executive board and then appoint an administrator.

I note that it is with heavy heart that the Minister for Aboriginal Affairs and Reconciliation has sought to introduce a further mechanism to intervene in the decision-making on the APY lands. This government stands by its belief that Aboriginal people must be empowered to make decisions that affect their lives. This is fundamental to the concept of self-determination, which must be built on a foundation of strong relationships, mutual respect and an open dialogue with Aboriginal peoples.

One aspect that often gets overlooked when self-determination is discussed is that of governance capacity and the importance of robust institutions. A strong administration is necessary if the APY is to operate as an institution that is effective and accountable to the communities it represents. The APY board, like many boards, has a great reliance on its administration. There are two positions that support the board with its statutory responsibilities, being the general manager and the director.

These roles provide an important gatekeeping function by determining what is passed on to the executive and providing independent assurance of financial and other matters. The board trusts and relies on these two roles. Indeed, all Anangu rely on these two positions to operate with independence and integrity, free from undue influences. This bill will add a discretionary power to the existing checks and balances available to safeguard the integrity of APY governance and its accountability to communities.

I note that the minister in the other place has commented more broadly on the way in which the system of governance operates on the lands. Anangu have a collective freehold interest in their land. The management of their land is overseen by a board which acts as a custodian for their interests, yet there are varying interests which remain unrepresented. This structure creates a void in which custodians can focus on their own interests and neglect those of the broader Anangu community.

This is particularly evident in relation to women's interests. The minister has said that he intends to introduce a broader package of reforms, in large part informed by the review conducted late last year and early this year into the governance of the lands. While much of the changes are yet to be settled, this government is determined that women will have a stronger say in the affairs of the lands. With that, I commend the bill to this house.

Bill read a second time.

Sitting extended beyond 17:00 on motion of Hon. S.E. Close.

Committee Stage

In committee.

Clause 1.

Ms CHAPMAN: When this matter was dealt with in the other place, the minister indicated that he had not visited the lands for over 12 months. My questions are: when did you last visit the lands; and, if you are aware, has any other minister of the government visited the lands in the last 12 months?

The Hon. S.E. CLOSE: I am advised that ministers have visited this year including, we think, the Minister for Health and the Minister for Police. I can obtain more detail for you, but we do not have that here.

Ms CHAPMAN: When the Minister for Police attended—and I am assuming it is the current minister for police—how long ago was that?

The Hon. S.E. CLOSE: Because we do not have the details I will have to take that on notice.

Ms CHAPMAN: If you do not know when the Minister for Police visited the lands, and you have the senior adviser here from the department, could you inquire as to when the Minister for Police last visited?

The Hon. S.E. CLOSE: Certainly, that is what I meant to say in 'taking it on notice'. We have had this discussion. She does not have the details here, and therefore I am taking it on notice.

Ms CHAPMAN: Irrespective of the date that he visited the lands in the last 12 months, what was the nature of the visit to the extent of inspection or consultation with police services on the lands?

The Hon. S.E. CLOSE: Again, she does not have that detail. She is not privy to the details of the visits, and therefore I will have to take that on notice.

Ms CHAPMAN: Is the minister aware of any ministers' visits in the last 12 months? Perhaps I should confine it to since the election, because obviously you were not in cabinet prior to the election, so I will assume that you do not have knowledge prior to that. Have any of the issues of alleged dysfunction on the lands been raised at cabinet level about the basis upon which this request is now coming before us to pass this bill?

The Hon. S.E. CLOSE: The member will be aware that I am unable to discuss anything relating to this bill that has been raised within cabinet. Chair, I seek your guidance on whether the ought to be discussing specific clauses.

The CHAIR: We are on clause 1.

Ms CHAPMAN: You see, minister, this has been canvassed in another place. There are a number of questions that remain unanswered about the specifics of what is allegedly dysfunctional in respect of the current governance on the lands. The minister—and you have repeated it—essentially says that there have been seven different general managers since 2010, and then there is unspecified dysfunction. Further questioning in the other place does not provide us with any identified dysfunction other than that—what I can glean from it—there is apparently some financial dysfunction. Can you firstly tell us the nature of the actual dysfunction?

The Hon. S.E. CLOSE: I better understand the context of the question, so I appreciate that. I understand that the minister has outlined the governance and probity problems involving the APY Executive Board, which have been ongoing for a considerable period. These are issues pertaining to expenditure, procurement, recruitment and salary allowance irregularities. They also relate to executive board payments and payments to spouses for travelling expenses.

The member for Morphett outlined in this place yesterday many recent events involving information from former general managers and staff of the APY. What is clear is that it there is a series of allegations over a number of years from a number of people that suggest a pattern of decisions or actions by the executive board that affect the way the APY staff are able to operate, resulting in conflicts with staff, difficulties in operations and service delivery, and instability in the organisation as a whole. The minister has said that he cannot wait another three months for a bill to pass state parliament enabling him to change how the APY lands are administered.

Ms CHAPMAN: Certainly we have had the advantage of information that the member for Morphett shared with the house as to areas of concern that he understands former general managers and employees on the lands have raised, where they are the victims in the sense of intimidatory conduct and the like—to that extent. We are grateful for that, but we do not have anything from the government. So, if these things have occurred in respect of expenditure, procurement, recruitment and salary allowances, and expenses of the board, when were they first known to the government and what action has been taken?

The Hon. S.E. CLOSE: I can only respond on the basis of the briefing I have been given which suggests that the minister has previously outlined these governance and probity problems. In terms of the timing, I will have to take that on notice.

Ms CHAPMAN: Under the act, section 11 provides for the minister to be able to give directions, and there were some directions detailed in the other place in letters of correspondence and responses. Some of the directions outlined by the minister largely related to financial matters and the matters referred to there, that is, a willingness to undertake and agree to do those things (or not do those things), and that is outlined in the correspondence that was read out in committee in the other place. If there has been a breach of any of those directions, are you aware whether there has been any action taken by the government to treat those matters as a breach of direction?

The Hon. S.E. CLOSE: I think there are probably two aspects to the question and one relates to whether the existing powers are sufficient and then some question about actions that have previously been taken that may have proved inadequate. To address the question of the extent of existing powers, I am advised that the current powers of the minister to intervene are limited and take the form of power to direct specific action and only then in limited circumstances.

The current powers may be exercised only where certain failures of a specified kind have occurred on the part of the executive board or individual board members. The complexities of time involved in that process can be detrimental to the interests of the Anangu who depend on and deserve a stable and functioning government to represent their interests, and this is, I am advised, the position of the minister.

In terms, specifically, of trying to address the existing financial management issues, in 2012-13, the government arranged for KPMG to review the financial management systems. In 2013-14, we provided a once-off budget increase to assist in improving financial governance systems. In 2013, the government funded a full-time financial controller, and funding for this position has continued. In 2013-14, the government strengthened the APY funding agreement to require monthly budget variance reports.

I am advised that in late November 2014, the APY financial controller took the extraordinary step of contacting the minister directly and providing the minister with correspondence outlining his concerns about a range of concerns pertaining to the members of the board and administration staff.

Ms CHAPMAN: So, this is a letter from the financial controller. Is he or she still the financial controller in that role?

The Hon. S.E. CLOSE: I am advised they do hold the position but are currently on leave.

Ms CHAPMAN: Has the letter that went in November to the minister from the financial controller been tabled or made available at all for any of the parliament to consider this matter?

The Hon. S.E. CLOSE: I am advised that it has not been tabled.

Ms CHAPMAN: Is there any reason why that has not been presented, listing, presumably, the concerns in respect of the financial management?

The Hon. S.E. CLOSE: I have no advice on the considerations that the minister gave, so I am unable to answer that question.

Ms CHAPMAN: I assume that, given the statement you have just read out, it formed the basis upon which the minister came rushing into the parliament to say, 'Look, I need broader powers.' That is a concern to me to this extent: there are very clear provisions in the act which set out, particularly on financial matters, about what is to occur. I am just going to ask a number of questions, and I appreciate you may not know, but they are matters which I think should be before this parliament in relation to what has occurred. The minister has, under section 17, the right and power to direct that members attend meetings. Has he done that in the last four years?

The Hon. S.E. CLOSE: I am advised that he has not.

Ms CHAPMAN: Section 12E makes provision for the entitlement for APY—that is the general populace as such, the corporation of which the entity is defined—to recover compensation from the executive board. Has there been any application for and/or payment of compensation made by the APY against the executive board in the last four years?

The Hon. S.E. CLOSE: We do not have the answer to that question here.

Ms CHAPMAN: Is it the case that the advisers that you do have here at this stage are not aware of any applications?

The Hon. S.E. CLOSE: The person who is advising me is not aware of such an application, but I am happy to take it on notice for you.

Ms CHAPMAN: Under section 12F there is a code of conduct that the executive board is obliged to prepare. Has a code of conduct been prepared, and is there a current operating code of conduct?

The Hon. S.E. CLOSE: I am sorry, member for Bragg; would you mind repeating the question?

Ms CHAPMAN: Under section 12F of the act there is a provision, an obligation for the executive board to prepare, maintain and review a code of conduct. That is required to go through a certain process, including that it has to provide for a requirement that persons referred to—which is those members of the board and the directors of administration and the like—must not engage in bullying of, harassment of or threatening behaviour towards any Anangu or persons employed on the APY lands. My question is: is there a current code of conduct that is operational on the lands?

The Hon. S.E. CLOSE: I am advised that there is, yes.

Ms CHAPMAN: Under 12G there are obligations to develop and submit for ministerial approval, in respect of inspection and copies being available, a set of guidelines which have to be followed by the executive board and general manager. To your knowledge, is there a current operative set of guidelines that has followed that process?

The Hon. S.E. CLOSE: My adviser believes that to be the case, yes.

Ms CHAPMAN: Under 12H of the APY act there are prudential requirements in respect of certain activities. That is, the executive board must obtain and consider a report that addresses the prudential issues in respect of, largely, financial matters, but that they are also required to follow in the event that they want to approve a project that is likely to exceed 20 per cent of the approved budget for the year. To your knowledge, has there been any prudential oversight of any projects of that nature in the last four years? If so, have they followed the required requirements?

The Hon. S.E. CLOSE: We do not have that information here. We will have to take that on notice.

Ms CHAPMAN: Under division 4A of the act—and I suppose this is where it gets to the pointy end of the personnel who operate as employed officers on the lands and who are answerable to the board—there is a requirement that there be a director of administration and a general manager. We have heard a lot about the seven general managers who have come and gone. Is there a general manager currently on the lands at all?

The Hon. S.E. CLOSE: Yes, there is an acting general manager who has been appointed by the board.

Ms CHAPMAN: So how long has the acting general manager been in place?

The Hon. S.E. CLOSE: I understand since the board made the decision to terminate the previous general manager.

Ms CHAPMAN: How long is that? Six months, two years?

The Hon. S.E. CLOSE: Since 15 October.

Ms CHAPMAN: So we have somebody since 15 October, a couple of months ago, who has been the acting person. We have had a letter sent in last month to the minister from the financial controller, who is still employed—apparently on leave at the moment but still employed—identifying some obviously significant financial deficiencies that are being alleged. The act also provides that there be a director of administration under 13B. Is there a current director of administration on the lands who is still operating?

The Hon. S.E. CLOSE: Yes, there is.

Ms CHAPMAN: The director of administration is the same person, is it, as the acting general manager or financial controller?

The Hon. S.E. CLOSE: No, that person is not acting in that role.

Ms CHAPMAN: In addition to the board, at the moment we have a financial controller, an acting general manager and a director of administration, all of whom have lines of responsibility to the board but all of whom are paid and continuing in their work; is that the situation?

The Hon. S.E. CLOSE: Yes, it is, assuming that the leave is paid leave for the financial controller, which I do not know.

Ms CHAPMAN: Apart from the financial controller, who sent a list of concerns to the minister last month—and you will check whether we can have a look at that—has any other correspondence or submissions been presented by the director or administrator or the acting general manager, and I appreciate they have only been there for a couple of months, confirming or corroborating the concerns raised by the financial controller?

The Hon. S.E. CLOSE: I will have to take that on notice. I do not know the answer to that.

Ms CHAPMAN: Under the APY act, minister, under sections 13N and 13O there are principal processes that are to occur in the event that the minister is to intervene. At present, under section 13N the minister may direct the executive board to do a number of things if he is satisfied that:

(a) the Executive Board has refused or failed to exercise, perform or discharge a power, function or duty under the Act or the constitution; and

(b) the refusal or failure has resulted in, or will result in, a detriment to the Anangu generally, or a substantial section of Anangu.

Basically, any obligation that the executive board has got to do of any nature, financial or otherwise, and its refusal or failure has some detrimental effect—so it is pretty general—then the minister can direct the executive board to do things.

We have heard already, in the other place specifically, correspondence previously going from the minister to the board saying, 'I would like you to do or not do certain things,' and they have written back and indicated whether they will or will not do those things. As I say, it is very broad. I should also point out that, of course, under section 13O if the executive board refuses or fails to comply with any of those directions the minister has the power to ultimately suspend the executive board for such period as is gazetted essentially, and I am paraphrasing it but I think we do not need to go through all the detail of it.

What I do not understand, at this point, is that correspondence has gone previously when there have been concerns raised and they have, presumably, been sufficiently answered to have not acted. But, as late as last month, correspondence has gone from the financial controller. We do not know whether it was supported or otherwise by other senior people on the lands. It has been suggested that there has been some impropriety in some way.

I am only assuming at this point that the financial controller has raised financial matters because he or she has a specific task. If those concerns were in relation to prior conduct or a future threat to the finances in some way or access to moneys that are in line with the matters you pointed out—employment, salaries, allowances, procurement or expenditure—then the minister is in a position to set out what the executive board is to do or not do, as the minister has done in the past.

My question is: having got this information from the financial controller, was any request issued by the minister in the form of a direction to the executive board since that material was received from the financial controller?

The Hon. S.E. CLOSE: I am advised that, no, he has not issued a direction since he received that correspondence.

Ms CHAPMAN: Can we understand why that is the case? Why has there not been any instruction issued to the executive board when this material was presented from the financial controller?

The Hon. S.E. CLOSE: It is impossible for me to answer why a minister who is not here to answer for himself has made a decision, but it would seem to me to be logical to understand that his judgement is that this bill is required and that is why he has brought it forward. A number of the speeches on the other side were supportive and understanding of the necessity for this additional clause, for the additional power, so I regard that as a matter of judgement that has been made by people who have a better understanding of what has been occurring, or could occur.

Ms CHAPMAN: That may be so, and I have no doubt that our leader does not in any way want to have a situation where, if a minister says there is a circumstance of significant detriment to Anangu people, he in any way impedes the government from being able to operate to protect against that. That does not mean as a parliament we are not entitled to have some information from the minister about not just the nature of the concern.

I think you would agree, minister, that, if the problem is that there is some imminent risk to the financial security of the funds on the APY lands—and a lot of money goes in and out of these accounts and there has been a lot of discussion in the other place about very significant moneys coming in from cattle and, presumably, the management of feral camels and all sorts of other income opportunities they have there, so millions of dollars go through in the management of the lands—clearly, though, under the act, if it is just a financial matter, of course the most immediate direction from the minister would be that there is not to be approval for any funding without his approval or without having the financial controller or such other audit process that he thinks fit.

We already know, as is clearly in the act, there is an obligation under the codes of conduct for there to be no bullying or intimidation in respect of any person either on the lands or employed on the lands. It is very broad. I think the member for Morphett has been the most frank about concerns that he thinks are out there, namely, intimidation of those who may well be obliged or who have felt obliged in certain circumstances to have to comply with the demands of the APY board. That is the impression I am getting.

We have heard all this before. We have heard it all before from Ted Mullighan when representatives of his inquiry went to the APY lands and issues of intimidation were raised about why it was that such a prolific amount of child abuse was happening on the lands and the women were saying, 'We can't report this.' The mothers, grandmothers and sisters and people who were worried about the children felt intimidated into silence. So we know it can happen, but it is just that we are being asked here to be blind to that detail which would clearly be sufficient, in my mind at least, to support some further intervention.

I am still at a loss as to why under the act there is not that provision because there are two very clear things. Firstly, there is a myriad of people who are managing the finances up there, or should be, and who have capacity to be able to resist unreasonable demands by a member or the whole of the board; and, secondly, we have very clear code of conduct obligations which you have told us are in place and which prohibit bullying or intimidatory conduct. So I am still completely in the dark as to what on earth is going on on the lands or have the confidence that the current minister is actually going to do anything about it because he has failed to even try, it seems to me, under the current law to effect that.

It may be that, ultimately, in passing this bill in the circumstance where the parliament is about to rise, we need to call on the Premier to appoint a new minister to make sure that this actually happens and to feel confident that there is actually going to be somebody there in charge who knows what they are doing and is prepared to do something about it—

The Hon. P. Caica interjecting:

The CHAIR: Order!

Ms CHAPMAN: —because that is the concern I have. If we pass this legislation today and rush it through the parliament because everyone is going away for the next three months and we are not going to be here to deal with it, then surely it is reasonable that we say to the Premier to put someone in charge who knows what they are doing or is prepared to have the courage to actually implement the terms of the act, especially as we are going to give them carte blanche under this provision.

The CHAIR: Is there a question because we do have other business we need to move to?

Ms CHAPMAN: Yes, my next question—

The CHAIR: No, that is the end of that. That was a statement, is there a question?

Ms CHAPMAN: The question is: who is the minister currently proposing to appoint as the administrator?

The Hon. S.E. CLOSE: I think it is important to note that what this bill does is give the power to the minister to appoint an administrator. As the honourable member would know very well, an important element of natural justice is that ministers of the Crown should not prejudge what decision they may or may not make and should first provide others who may be affected with an opportunity to be heard about the proposed decision. I understand that the minister has said that he does not want to prejudge the situation and that he needs to make a considered determination about it.

The minister has said that he hopes that he will be able to work with the APY and the Anangu to actually get better governance administration of the lands. What the bill seeks to address is the design and architecture of a very important check and balance and that is the way in which the administrator can be appointed, so it is premature to be asking who might be appointed. The minister requires the capacity to do this as opposed to being about to make a decision.

Progress reported; committee to sit again.